Divorce Law Journal

Daunhauer v. Daunhauer, Ky COA, Modification of Maintenance

DAUNHAUER v. DAUNHAUER, ___S.W.3d___ (Ky. App. 2009)

PUBLISHED: REVERSING
ACREE PRESIDING; NICKELL AND SENIOR JUDGE KNOPF CONCUR
COUNTY:JEFFERSON

Ex-Ex-Husband appealed from TC’s order denying his motion to terminate his maintenance obligation, arguing that Ex-Wife was no longer dependent upon that maintenance to meet her needs. 

FACTS:

Ex-Husband and Ex-Wife were married for 21 years.  At time of divorce, Ex-Husband was 48 and working as a dentist, earning $22,000 per year, and Ex-Wife was 42 and working as a secretary, earning $10,000 per year.  Ex-Wife relocated to California before Decree entered.  Parties entered agreement in which Ex-Husband would pay Ex-Wife maintenance of $400 per month, with such amount being modifiable after two years.  TC reduced maintenance to $200 per month after three years, when Ex-Wife’s income as a medical assistant was $26,000 per year and Ex-Husband’s income as a dentist was $36,000 per year.  Five years after that, TC denied Ex-Husband’s next motion for maintenance reduction, finding insufficient change in circumstances.  In 2006, at age 66, Ex-Husband injured himself and needed surgery and physical therapy, so he decided to sell his dental practice and retire.  He filed a motion to terminate maintenance, and although TC found retirement reasonable, TC denied motion as it found parties’ circumstances had not sufficiently changed.  Ex-Husband appealed.

ANALYSIS:

CA held that goal of maintenance award per KRS 403.200 is to facilitate one’s transition from dependence on a former spouse to independence.  CA held that original maintenance award was rehabilitative, and that the most appropriate reason for modification is Ex-Wife’s ability to live independently of maintenance.  Although it is appropriate in some cases to have maintenance not terminate, that occurs only when the claimant’s prospects of self-sufficiency are dismal.  The policy underlying KRS 403.250, requiring a substantial change of circumstances for modification, is relative stability.  CA found these two policies are not at odds.  Because Ex-Husband’s voluntary retirement was reasonable, TC could consider his resulting change of circumstances.  Ex-Wife earned more income than Ex-Husband at time of hearing.  Both parties had expenses in excess of their income.  CA held that if Ex-Wife achieved self-sufficiency, then post-decree increases in Ex-Husband’s income or assets are irrelevant.  Self-sufficiency is determined with reference to standard of living acquired during marriage, not post-decree.  CA also found that TC erred by considering the “relatively small” amount of maintenance and the higher cost of living in California.  If a claimant has achieved self-sufficiency, any amount of maintenance is inappropriate.  Further, since Ex-Wife has sufficient income to meet her needs, the higher cost of living is irrelevant.  CA reversed and remanded. 

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Mauldin v. Bearden, Ky. S. Ct., Child Custody, CR 60, Continuing Jurisdiction

Mauldin v. Bearden, ___S.W. 3d___ (Ky. 2009)

PUBLISHED: REVERSING
OPINION BY JUSTICE NOBLE; ABRAMSON, CUNNINGHAM, SCHRODER, AND VENTERS, JJ., CONCUR; MINTON, C.J., CONCURS IN RESULT ONLY
COUNTY:

JEFFERSON

Paternal Grandparents appealed from CA decision reversing Jefferson Family Court’s (FC’s) order denying Mom’s motion to set aside FC's judgment awarding permanent custody of Daughter to Paternal Grandparents and her motion for visitation, where FC found that it lacked jurisdiction to consider visitation. 

FACTS: 

At time of Daughter’s birth, Mom and Dad were alcoholics and physically abusive to each other.  Mom had been drunk more than once during her pregnancy and while breastfeeding.  She had also been arrested for PI and DUI during her pregnancy.  Paternal Grandparents filed a petition for temporary and permanent custody and an ex parte emergency motion for temporary custody of Daughter four days after birth of Daughter.  Maternal Grandparents supported the motion, providing an Affidavit regarding both Mom’s and Dad’s unfitness to parent.  FC entered temporary custody order that day and referred the matter to CFC for investigation.    Daughter was immediately taken to Alabama to live with Paternal Grandparents.  CFC subsequently filed DNA action a few days later, which was transferred to same division as custody action consistent with principle of “one family, one judge,” which underlies Family Court, though the actions had and continued to have separate case names and numbers.  The following day, a hearing was held in which both Mom and Dad appeared drunk and were taken into custody. FC reaffirmed its award of temporary custody to Paternal Grandparents.  At a subsequent hearing, Mom and Dad were ordered to participate in a course of rehabilitative treatment and testing and were allowed supervised visitation, though neither ever exercised that right.  Neither Mom nor Dad filed a responsive pleading during this time.

Paternal Grandparents filed a motion asking the court to enter a default judgment granting them permanent custody of Daughter. Neither Mom nor Dad appeared at the hearing or filed   a response. FC entered a default judgment granting Paternal Grandparents permanent custody.  The supervised visitation order from the DNA proceeding remained in effect, but as CFC was taking no further action, there was no termination of parental rights that would have prevented the ordered visitation.  Mom and Dad were still living together.  Paternal Grandparents then initiated proceedings in Alabama, then the home state of Daughter, to formally adopt Daughter. Daughter had then been living there for nearly a year. Alabama entered temporary decree granting custody to Paternal Grandparents and set a dispositional hearing.  Mom participated in the Alabama proceeding through counsel.  She then filed a motion with Jefferson Family Court (FC) under case numbers for both custody and DNA actions, but noticed only for DNA docket, asking for custody of Daughter.  FC denied her motion as improper on DNA docket.

Mom then filed a motion to set aside the default judgment entered against her and to set a custody hearing, pursuant to CR 60.02(d) and (f). In support of her motion, Mom did not provide a Memorandum but filed affidavits signed by herself, Dad and Maternal Grandparents. Mom's affidavit stated that she believed Dad and Paternal Grandparents had conspired with Dad to prevent her participation; that Dad’s threats of abuse and her lack of access to vehicle or phone prevented her from participating in the permanent custody hearing; and that she otherwise would have defended herself, though she did not provide the basis for her defense.  Dad corroborated the abuse and conspiracy.  Maternal Grandparents stated that Mom was now capable of having custody of Daughter.   

After reviewing rebuttal affidavits and hearing the arguments of counsel, FC denied Mom an evidentiary hearing on the merits of her motion and issued an order finding that Mom failed to allege fraud or other improper conduct by Paternal Grandparents or collusion occurring between Dad and Paternal Grandparents and that Paternal Grandparents had done nothing wrong in their pursuit of custody of Daughter. FC noted that Mom and Dad stipulated in DNA proceeding that Daughter was at risk of neglect due to their alcohol abuse.  FC agreed that it had jurisdiction, but that that there was no basis pursuant to CR 60.02 to set aside the judgment granting permanent custody to Paternal Grandparents. 

Mom filed a motion for visitation and a motion to alter, amend or vacate its order denying her relief under CR 60.02.  FC denied Mom's motion to alter, amend or vacate, declining to exercise jurisdiction and deferring the visitation issue to Alabama as the home state of the child.  Mom appealed.  CA reversed, vacated and remanded, holding that affidavits submitted by Mom alleged facts that, if true, demonstrated fraud justifying vacation of the judgment, and that FC should hold a full evidentiary hearing with testimony.  CA also found that Kentuckyhad continuing jurisdiction under KRS 403.824, but did not address the fact that FC expressly declined jurisdiction. 

Questions:

Did FC properly deny Mom’s CR 60.02 motion without conducting full evidentiary hearing on fraud allegations?

Does FC have continuing exclusive jurisdiction such that it must make decisions regarding visitation? 

Analysis:

CR 60.02:

SC found that given what FC judge had from affidavits, record, and what he knew from case, he had sufficient information to determine facts and judge credibility of parties without taking further testimony.  FC was well within its discretion to take allegations on their face, and determine if further proof was necessary, as specificity of fraud allegations would be fleshed out by further testimony but not fundamentally changed.  FC judge had already had numerous contacts with parties to judge credibility of the affidavits.  Also, as a policy matter, FC’s decision spared family further turmoil from redundant testimony.

SC further found that Mom did not have nor did she allege defense at time of default judgment, as required by CR 60.02, and that although abuse and addiction are factors that are proper for a court to consider, neither standing alone equate to “facts of an extraordinary nature” required to be present under CR 60.02.  

Continuing Jurisdiction:

SC found that FC did have jurisdiction over actions concerning Daughter because she was born in Kentucky

and had resided here the entire eight days of her life when action was filed. 

SC nonetheless noted several procedural errors.  Paternal Grandparents filed Petition for custody under KRS 403.828, 403.270, and 405.020.  However, none of those statutes were applicable to Paternal Grandparents at that time. KRS 403.270 and KRS 405.020 applied to parents and/or de facto custodians and, since Paternal Grandparents had not had physical custody of nor provided financial support for Daughter for previous 6 months, they were not de facto custodians.  KRS 403.828 grants emergency jurisdiction to Kentucky when a child is brought in from another state that has jurisdiction over the child but is not exercising it.  As Daughter was resident of Kentucky at the time, this statute did not apply. 

SC noted that Paternal Grandparents could have filed a DNA petition under KRS 620.070 and FC could have issued emergency custody order to Paternal Grandparents under KRS 620.060, but that this order would only have been effective for 72 hours and that temporary removal hearing with full notice to both parents would have had to be held during that time.  That did not occur in this case.  Only when FC “renewed” its temporary custody order and ordered supervised visitation for Mom and Dad in the DNA docket did Paternal Grandparents have full legal custody.  FC should not have refused to hear Mom’s motion to modify custody orders just because Mom filed in the DNA action rather than the KRS 403 action.  SC opined that “it makes little sense… to continue to treat this subject matter as separate actions, if the purpose of the family court system is ‘one family, one judge,’” and that, “one a legitimate party properly invokes the court’s jurisdiction…continued compartmentalization of the proceedings—before the same judge—works only to disadvantage some litigants without a sound reason for doing so.”  SC nonetheless found that these problems did not affect the ultimate outcome, for when Kentucky declined to exercise jurisdiction and deferred to Alabama, proper UCCJEA provisions were followed regarding custody and visitation.  Moreover, UCCJEA does not apply to adoption proceedings and FC could make no ruling affecting Alabama

adoption proceeding.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Goldstein v. Feeley, Ky. S. Ct., Jurisdiction, Writs of Prohibition and Mandamus

Goldstein v. Feeley, __ S.W.3d __ (Ky. 2009)

A limited Decree of Dissolution was entered in 2003, dissolving the marriage of Ruby JoAnn Young-Layer and Robert James Layer and reserving the remaining issues, including the division of marital property, for future determination. In 2006, Robert died.  No property issues had been resolved.  Upon the wife’s motion, Robert’s estate was substituted as the real party in interest in the dissolution matter.  In March 2008, on the wife’s motion, the court entered a restraining order to prevent Appellant from transferring any interest in the estate’s assets without court order or agreement of the wife.  Appellant then filed motions to set aside the restraining order and to dismiss the dissolution action for lack of personal jurisdiction.  The court denied his motions.  The wife then asked the court for a temporary injunction in place of the restraining order.  Before the court could hold hearing on the matter, Appellant petitioned the COA for a writ of mandamus and prohibition. The COA denied the petition on the grounds that Appellant had an available remedy through an interlocutory appeal of the injunction.

SC affirmed.  Such writs are authorized in two circumstances: 1) where a court is acting out of its (subject matter) jurisdiction, and 2) where the lower court has jurisdiction but is proceeding erroneously and there is no adequate remedy by appeal. Because the question of personal jurisdiction is reviewable on appeal, writs are unavailable to litigants claiming lack of personal jurisdiction.  Therefore, the COA correctly denied Appellant’s writ.  Regardless of the question of personal jurisdiction, the trial court retained in rem jurisdiction to determine the nature and extent of the marital property and the authority to equitably divide it.      

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Ky Court of Appeals Publishes One Family Law Opinion Today

Daunhauer v. Daunhauer,  COA reversed trial court’s denial of motion to terminate maintenance. Discussion of rehabilitative maintenance. Digest to follow.

Young v. Holmes, Joint Custody, Ky COA Affirmed Order Of Religious School

Young v. Holmes, __ S.W.3d __ (Ky. App. 2009)

           The parties share joint custody of their minor child and could not agree as to where the child should attend kindergarten.  The trial court held a hearing and found that it was in the best interests of the child to attend St. Athanasius School.  Young appealed.  Young argued that the order violates her First Amendment right to religious freedom and that the court could only appropriately order the child to attend St.Athanasius if it found that he had special needs that would require him to attend a private school. 

COA affirmed.  The trial court used the correct standard of best interests of the child and did not base its decision on religious interests.  Young had the burden to prove that “the decision of the trial court was based upon religious interests and such impropriety would not be presumed merely because the school selected had a religious connotation in addition to its academic offerings.”  Therefore, the order did not violate the First Amendment.  Further, the trial court was not required to find that the child had special needs prior to ordering that he attend a private school, since Holmes voluntarily undertook the additional cost of the child’s private education.  Miller v. Miller and Smith v. Smith, cited by Young for that proposition, addressed situations where the trial court had imposed upon a party the additional cost of private education, and thus were not controlling authority in the instant case.    

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

P.C.C. v. C.M.C., Ky COA, Step-parent Adoption, Termination Of Parental Rights,Due Process

P.C.C. v. C.M.C., __ S.W.3d __ (Ky. App. 2009)

           P.C.C. appealed the judgment of adoption which effectively terminated his parental rights and allowed the child’s stepfather to adopt him.  P.C.C. and K.R.C. were married and had a son.  The parties divorced and agreed that K would have sole custody and P would have a set visitation schedule with the child.  K then married C.M.C., who filed a Petition for Adoption and Termination of Parental Rights.  P objected, arguing that C lacked standing to initiate termination proceedings, and he filed a motion to enforce his visitation rights in the divorce matter.  The trial court refused to hear P’s visitation motion unless the adoption petition was ultimately denied.  Pursuant to KRS 199.502, the court granted the adoption petition and terminated P’s parental rights on the theory that P had abandoned the child for more than 90 days by failing to exercise his visitation rights.

            COA reversed and remanded.  P was not afforded fundamental due process throughout the litigation.  C also failed to meet his burden of proof that P abandoned the child.  The evidence indicated that throughout the child’s life his father’s attempts to visit with him had been “systematically thwarted” by the child’s mother.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates